DE LANGE v POLICE [2021] NZHC 476

DE LANGE v POLICE [2021] NZHC 476 [11 March 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-501[2021] NZHC 476BETWEEN DANIEL DE LANGEAppellantAND NEW ZEALAND POLICERespondentHearing: 8 March 2021Appearances: K Lamb for the AppellantM Djurich for the RespondentJudgment: 11 March 2021JUDGMENT OF GORDON JThis judgment was delivered by meon 11 March 2021 at 3.30 pm.Registrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, ManukauCounsel: K Lamb, AucklandBackground[1] The appellant, Daniel De Lange was found guilty after a Judge alone trial of:1(a) doing an indecent act on a young person;2 and(b) indecent assault.3[2] On 10 November 2020, Judge T V Clark sentenced Mr De Lange to five and ahalf months' home detention and made an order for registration under the ChildProtection (Child Sex Offender Government Agency Registration) Act 2016 (theAct).4[3] This appeal relates to the registration of Mr De Lange as a child sex offender.The principal ground of appeal is that the Judge erred in taking into account evidencerelating to prior acquittals and unproven allegations. There is no appeal against thesentence of home detention.Facts[4] Mr De Lange's sexual offending occurred in respect of the same victim on twoseparate occasions. The victim and Mr De Lange were unknown to each other.[5] On 11 February 2019, both Mr De Lange and the victim were swimming at apublic swimming pool. The victim was 15 years' old while Mr De Lange was 30 years'old. He approached the victim and began talking to her. During this conversation,Mr De Lange suggested that the victim involve herself in modelling. He then offeredher $50 to pose in photographs with his car. The victim was uncomfortable and turnedher back to swim away from Mr De Lange. As she did this, Mr De Lange cupped thevictim's buttock. The victim swiped his hand away and climbed out of the pool. Thisconduct was the subject of the charge of doing an indecent act.1 Mr De Lange was also convicted of failing to answer District Court bail under the Bail Act 2000,s 38. However, that offence is not relevant to the appeal against registration as a child sex offender.2 Crimes Act 1961, s 134(3); Maximum penalty of seven years' imprisonment.3 Crimes Act 1961, s 135; Maximum penalty of seven year's imprisonment4 New Zealand Police v De Lange [2020] NZDC 23441 at [33] and [52].[6] The events that were the subject of the second charge occurred on 13 May2019. Both parties were again at the same public swimming pool. By then the victimhad turned 16 years and Mr De Lange had turned 31 years. The victim was waiting inline to use a drinking fountain. She was wearing a bathing suit. Mr De Lange saw thevictim and stood near her for a short period of time. When the victim leaned forwardto drink from the water fountain, Mr De Lange leaned over to place his water bottleon the ledge in front of her. Contemporaneously, he placed his hand on the victim'sbuttock. The victim recognised Mr De Lange from the prior incident and called hermother. The victim's mother travelled to the pool and alerted the lifeguards. Thelifeguards spoke to Mr De Lange and he gave them a false name. The lifeguards thenfollowed him out to his vehicle and obtained the registration number which wasprovided to the Police.District Court decision[7] On 10 November 2020, Judge Clark sentenced Mr De Lange to five and a halfmonths' home detention and made an order for registration under the Act.5 The Judgerecognised that the offending was "at the lower end of the scale for indecent assaultoffending".6 Yet, the Judge noted the significant effect that Mr De Lange's behaviourhad on the young victim, detailed in her victim impact statement.7[8] Judge Clark addressed two pre-sentence reports dated 23 September 2020 and3 November 2020 (PAC reports). The Judge noted that both PAC reports revealedMr De Lange's unwillingness to address his offending.8[9] Judge Clark extensively discussed a Psychological Assessment Report dated29 October 2020 which had been ordered for sentencing.9 In reviewing the report, theJudge had regard to:5 At [33] and [52].6 At [9].7 At [9].8 At [11]-[12].9 At [13]-[26].(a) prior allegations of violence against Mr De Lange which resulted incharges being laid, but dismissed or withdrawn by police;10(b) prior allegations of sexual misconduct against Mr De Lange, several ofwhich resulted in unsuccessful prosecutions;11(c) Mr De Lange's positive family environment and ability to engage withpeople of his own age;12(d) Mr De Lange's explanation of the present offending as an accident;13and(e) The results of tests conducted by the writer of the report which intotality placed him at level IVb (well above average) risk of furthersexual reoffending:14(i) Mr De Lange's RoC*Rol score, which placed him within agroup of offenders who have a low risk of imprisonment;15(ii) Mr De Lange's Static-99R static risk score, which placed himin the well above average category;16(iii) Mr De Lange's STABLE 2007 stable dynamic factors whichinfluence the likelihood of recidivist sexual offending.17 Thosewhich were problematic included capacity for relationshipstability, hostility towards women, general social rejection, lackof concern for others, impulsive acts, poor problem-solvingskills, sex drive/sexual preoccupation, deviant sexual interestsand co-operation with supervision.10 At [15].11 At [16]-[17].12 At [18].13 At [19]-[20].14 At [25].15 At [21].16 At [22].17 At [23].[10] In assessing the risk Mr De Lange posed to the sexual safety of children,Judge Clark had regard to the factors in s 9(3) of the Act.18 These included: theoffending was at the lower end of the scale of sexual offences;19 a year had elapsedsince the offending occurred;20 the ages of Mr De Lange (30 and 31 years' old) andthe victim (15 and 16 years' old) and the 15 year disparity between them;21 the writtenrisk assessment;22 the victim impact statement;23 and the submissions.24 The Judgeconcluded that Mr De Lange posed a real and genuine risk to the sexual safety ofchildren as an untreated sex offender who was unwilling to be treated.25 The Judgethen made a registration order, influenced by the "combination of factors" referred toabove.26Relevant statutory framework[11] Section 9(1) of the Act provides that the Court may make a registration orderwhere the Court imposes on a person who is aged 18 years or older (at the time of theoffending) a non-custodial sentence in respect of a conviction for a qualifying offence.Both doing an indecent act on a young person under 16 years of age and indecentassault (if the victim is under 16 years of age) are Class 2 qualifying offences.27 AsMr De Lange was sentenced to a non-custodial sentence, registration was subject tothe making of a registration order.28[12] A registration order may be made only if the Court is satisfied that the personposes a risk to the lives or sexual safety of one or more children, or of childrengenerally.29 For the purpose of assessing the risk posed by the offender, the Courtmust consider:3018 At [43].19 At [43]; Section 9(3)(a).20 At [43]; Section 9(3)(b).21 At [43]; Section 9(3)(c)-(f).22 At [44]-[45]; Section 9(3)(g).23 At [46]; Section 9(3)(h).24 At [47]-[48]; Section 9(3)(i).25 At [50].26 At [49].27 Schedule 2, cls (2)(e) and (f) respectively.28 Section 9.29 Section 9(2).30 Section 9(3).(a) the seriousness of the qualifying offence;(b) the period of time that has elapsed since the offence was committed;(c) the age of the person;(d) the age of the person at the time of the offence;(e) the age of any victim of the offence at the time of the offence;(f) the difference in age between the victim and the person at the time ofthe offence;(g) any written assessment of the risk posed by the person;(h) any submission or evidence from any victim of the offence;(i) any other submission or evidence relating to the risk posed by theperson; and(j) any other matter that the court considers relevant.[13] In D v Police, the majority of the Supreme Court held that s 9 of the Actinvolves a two-stage test:31(a) The first stage of the process is to determine whether the threshold riskhas been met, having considered the factors set out in s 9(3). That riskis a "real or genuine" risk. The phrase "serious child sex offender"contained in s 3 of the Act is not a defined term, is not used in s 9, andis therefore not of assistance to the assessment of threshold risk; and(b) If the threshold has been met, the second stage is whether the discretionto make a registration order under s 9(1) should be exercised having31 D v Police [2021] NZSC 2 at [103]-[108] per Winkelmann CJ and O'Regan J, and at [260] perGlazebrook J agreeing with the former.regard to the level of risk posed by the offender. In order to embark onthat assessment, the Court must assess the nature and seriousness of therisk posed by the offender. Once a Judge has determined the nature andseriousness of the risk posed by the offender, the Judge must determinewhether the risk is sufficient to warrant the making of a registrationorder. That will involve a balancing of the protective objectives of theregistration order against the level of intrusion into the rights of theoffender.32Issue on appeal[14] The principal ground of appeal is that the Psychological Assessment Reportrelied on by the Judge when making the order to place Mr De Lange on the Child SexOffender Register placed too much weight on previous unproven allegations of similaroffending and allegations where charges had been dismissed.Appellant's submissions[15] Mr Lamb, for Mr De Lange, submits the Judge erred by having regard to theparts of the Psychological Assessment Report that contained various allegations ofconduct that was the subject of charges that had been dismissed or where no chargeshad been laid. Although not specified as a ground of appeal, Mr Lamb also submitsthe tests and conclusions drawn in the report are inaccurate and cannot be relied uponin assessing Mr De Lange's risk of recidivist offending.[16] Mr Lamb submits that as a consequence the Judge erred in her risk assessment.Mr De Lange does not fit the criteria for a "serious child sex offender" or fulfil therequirement of a "real and genuine risk", having regard to Goose v Police,33Johnston v Police,34 and Fowler v R.3532 At [108].33 Goose v Police [2017] NZHC 2453.34 Johnston v Police [2017] NZHC 1718.35 Fowler v R [2017] NZHC 1892.Respondent's submissions[17] Mr Djurich, for the respondent, submits the ambit of the Court's riskassessment under s 9 of the Act enables unproven allegations and prior acquittals tobe taken into account. This is supported by analogy to extended supervision orders(ESOs), preventive detention and bail determinations.[18] Mr Djurich submits the Judge did not err in her assessment of risk. As to thesecond stage of the test, Mr Djurich acknowledges that Judge Clark did not undertakethe balancing exercise. However, he submits the second stage of the test is satisfiedin this case. Mr De Lange poses a real risk to the safety of children generally that isnot outweighed by the intrusion of his rights consequent on registration.Content of the Psychological Assessment Report[19] The Psychological Assessment Report dated 29 October 2020 was prepared byMaeva Grzes, a registered clinical psychologist. Ms Grzes met with Mr De Lange fortwo interviews, which together lasted three and a half hours. A variety of informationwas available to Ms Grzes in writing the report, including Mr De Lange's criminalhistory, a record of charges extracted from Corrections Business Reporting andAnalyses ("COBRA"), PAC reports and information from an Oranga Tamariki report.Ms Grzes' report detailed:(a) the manner in which Mr De Lange presented himself;(b) his pattern of previous conduct involving unproven allegations andacquittals;(c) his personal background and index offending;(d) his current personal circumstances, including ongoing sentences,employment, lifestyle choices and Millon Clinical MultiaxialInventory-Version Four self-report questionnaire results;(e) his lack of participation in any treatment programmes;(f) his subjection to bullying in his childhood and responses to thatthroughout his life;(g) his likelihood of reoffending, having regard to RoC*Rol, Static-99Rand STABLE 2007 test results; and(h) Ms Grzes recommendations in relation to Mr De Lange.[20] The aspects of the report primarily relevant to this appeal are Ms Grzesreferences to Mr De Lange's unproven allegations and prior acquittals,36 which are asfollows:(a) On 5 February 2013, Mr De Lange was acquitted of two charges ofindecent assault of a female aged between 12 and 16 years. Heexplained that he was accused of brushing past two girls at a pool andindecently touching them;(b) On 9 December 2016, Mr De Lange was acquitted of two charges ofindecent assault against a female aged under 12 years. He explainedthat his friend's girlfriend accused him of indecently touching her sevenyear old daughter. However, he considered that the false allegationswere spurred by her jealousy regarding his friendship with herboyfriend, and his refusal to engage in a threesome with the couple, as"she was ugly";(c) An Oranga Tamariki report which indicated that in 2002, whenMr De Lange was 13 years' old, he had indecently assaulted two boys,aged eight and 10 years' old. He claimed that the boys' parents weregoing through a divorce and the mother used these allegations againsthim to gain custody of the children; and36 The Police had sought to admit evidence of the conduct relating to the two prior acquittals aspropensity evidence but the application was dismissed pre-trial: Police v De Lange [2020] NZDC10408.(d) An Oranga Tamariki report which indicated that in 2008, whenMr De Lange was 20 years' old, he ran away with a 13 year old girl.Police were contacted and the girl was returned to her parents.[21] I also note that in addition to the above allegations, Ms Grzes states thatMr De Lange disclosed to her a relationship he had had with a 13 year old girl whowas his neighbour, when he was aged 18. Mr De Lange said the relationship wasencouraged by her mother but that they did not engage in sexual intercourse.[22] Ms Grzes also included Mr De Lange's responses when spoken to about theindex offending. In respect of the offending on 11 February 2019, he stated he wastrying to be nice to the victim. He denied any sexual motivation for the offending. Asto the offending on 13 May 2019, Mr De Lange described it as an accident, stating hesimply brushed past the victim. He said he had just come out of the sauna and hiseyesight was blurry.[23] As to Mr De Lange's risk, I have referred at [9](e) to the results of the testsconducted by Ms Grzes. Additionally she noted that Mr De Lange has limitedprotective factors. Overall, based on the information available and after considerationof static and dynamic risk factors and clinical judgement, her opinion was thatMr De Lange poses a high risk of further sexual reoffending. If Mr De Lange were toreoffend sexually, this is likely to be in the form of an indecent assault against ateenage or adult woman. Ms Grzes continued that this is likely to be an impulsiveassault in the context of a lack of consequential thinking, sexual arousal and attraction,a feeling of loneliness and a poor response to social cues.Discussion[24] Section 9(3) of the Act provides for the matters that the Court must consider inassessing the threshold risk posed by an offender. The pertinent factors are "anywritten assessment of the risk posed by the person",37 and "any other matter that the37 Section 9(3)(g).court considers relevant".38 The question is therefore whether unproven allegationsand prior acquittals are relevant to the risk posed by an offender.[25] Mr Djurich submits that unproven allegations are utilised by the Court for riskassessment in relation to ESOs, preventive detention and bail determinations.Consequently, there is no basis to suggest that they are irrelevant to the risk assessmentunder the Act, which involves a similar exercise.[26] Under the Parole Act 2002, a sentencing court may make an ESO in respect ofan offender who has been convicted of a serious violent or sexual offence if, followingthe hearing of an application made under s 107F, the Court is satisfied, havingconsidered the matters addressed in the health assessor's report as set out ins 107F(2A), that:39(a) the offender has, or has had, a pervasive pattern of serious sexual orviolent offending; and(b) there is a high risk that the offender will in future commit a relevantsexual offence and/or there is a very high risk that the offender will infuture commit a relevant violent offence.[27] The health assessor's report for an ESO may take into account any statementof the offender or any other person concerning any conduct of the offender, whetheror not that conduct constitutes an offence and whether or not the offender has beencharged with, or convicted of, an offence in respect of that conduct.40 The Court ofAppeal has held that the capacity of the health professional to rely on this material inproviding their reports necessarily means that the Court may equally have regard toit.41 There would be little point in the health assessor having regard to it if the Courtcould not.42 This is affirmed by the Court's authority at any hearing to receive and38 Section 9(3)(j).39 Parole Act 2002, s 107I.40 Section 107F(3).41 W v Chief Executive of the Department of Corrections [2019] NZCA 460 at [32]. See also Clarkv Chief Executive of the Department of Corrections [2016] NZCA 119 and Chief Executive of theDepartment of Corrections v Rimene [2015] NZHC 2721.42 At [32].take into account any evidence or information that it thinks fit for the purpose ofdetermining the application or appeal, whether or not it would be admissible in a courtof law.43[28] Under the Sentencing Act 2002, preventive detention may be imposed where:44(a) a person is convicted of a qualifying sexual or violent offence;(b) the person was 18 years of age or over at the time of committing theoffence; and(c) the court is satisfied that the person is likely to commit anotherqualifying sexual or violent offence if the person is released at thesentence expiry date of any sentence (other than a sentence under s 87)that the court is able to impose.[29] The purpose of preventive detention is to protect the community from thosewho pose a significant and ongoing risk to the safety of its members.45 A sentence ofpreventive detention cannot be imposed unless the Court has considered reports fromat least two appropriate health assessors about the likelihood of the offendercommitting a further qualifying sexual or violent offence.46 In Lepper v R, the Courtof Appeal commented that:47[34] We do not accept that there is any requirement that a sentencing judgeidentify and exclude previous conduct that has been the subject of an acquittal.Dr Parker was entitled to include any conduct that he considered relevant tohis assessment and the Judge was entitled to accept that assessment. The factthat judges in other cases did not consider it appropriate to do so does notmean that there is any general constraint.[30] In R v Leahy, Thomas J considered that the health assessor had a proper basisfor taking into account unproven allegations in their risk assessment.48 The health43 Parole Act 2002, s 107H(2).44 Sentencing Act 2002, s 87(2).45 Section 87(1).46 Section 88(1)(b).47 Lepper v R [2016] NZCA 209 at [34]. Note that an application to the Supreme Court for anextension of time to file an application for leave to appeal was dismissed: Lepper v R [2018] NZSC58.48 R v Leahy [2019] NZHC 290 at [51].assessor had referred to empirically derived risk assessment literature which statedthat charges are relevant to a clinical assessment of risk, even where no convictionresults (or it is quashed).49[31] Finally, in hearing an application for bail, the Court may receive as evidenceany statement, document, information, or matter that it considers relevant, whether ornot it would be otherwise admissible in a court of law.50 In Thornton v Police, Katz Jcommented that any relevant information can be utilised to assess risk in a bail context,and the fact that earlier charges may have been dismissed does not mean that thesurrounding circumstances out of which they arose can never be relevant.51[32] Returning then to the Act. Section 9(3)(j) requires the Court to consider "anyother matter that the Court considers relevant" in assessing risk. I consider thisprovision is necessarily unqualified having regard to the Court's broad task inassessing both present and future risk. To limit the matters to only those which wouldbe admissible at trial, and which have been proven, would unduly restrict the Court'sability to undertake an effective risk assessment.[33] This approach is supported by the risk assessment frameworks for ESOs,preventive detention and bail as summarised above. In each instance the Court has awide ambit to assess a person's level of risk. As noted, s 107F(3) of the Parole Actand s 88(3) of the Sentencing Act expressly permit health assessors (and thus theCourt) to take into account unproven conduct, and s 20(1) of the Bail Act 2000expressly permits a Court to take into account any matter that it considers relevant,whether or not it would be otherwise admissible in a court of law. However, theunqualified nature of s 9(3)(j) and also s 9(3)(g) (any written assessment of the riskposed by the person) together with the similarity between registration orders under theAct, ESOs and preventive detention, supports a similar interpretation to the provisionswhich apply to those other orders.49 At [51].50 Bail Act 2000, s 20(1).51 Thornton v Police [2016] NZHC 105 at [16]-[18].[34] Mr Lamb also makes a submission that prior acquittals and unprovenallegations should not be taken into account when the Court considers whether or notto make a registration order, because a registration order is a "penalty". Mr Lambrelies on the decision of the Supreme Court in D v Police,52 where the Supreme Courtconcluded that a registration order is a penalty "for the purposes of s 6 of theSentencing Act and s 26(g) of the Bill of Rights". The two provisions referred to inthe quoted words deal with retrospective penalties. The discussion and decision of theSupreme Court,53 is directed at that issue. I do not consider it supports the widerproposition advanced by Mr Lamb.[35] Mr Lamb additionally refers to s 9(4) of the Act which provides:(4) A registration order is made at the time of sentencing and is a sentencefor the purposes of Part 6 of the Criminal Procedure Act 2011(appeals).[36] In reliance on that provision Mr Lamb submits that because a registration orderis a sentence, this is a further reason why the Judge erred in taking into account prioracquittals and unproven allegations. However that submission fails to recognise thewords "for the purposes of Part 6 of the Criminal Procedure Act 2011". That part ofthe Criminal Procedure Act deals with appeals. Section 9(4) of the Act does notprovide that a registration order is a sentence for all purposes.[37] Next Mr Lamb submits that s 24 of the Sentencing Act governs the approachto be taken to the evidence relied upon by a Court when satisfying itself that the s 9criteria have been established. Section 24 provides:24 Proof of facts(1) In determining a sentence or other disposition of the case, a court—(a) may accept as proved any fact that was disclosed by evidenceat the trial and any facts agreed on by the prosecutor and theoffender; and(b) must accept as proved all facts, express or implied, that areessential to a plea of guilty or a finding of guilt.52 D v Police, above n 31.53 At [52]-[59].(2) If a fact that is relevant to the determination of a sentence or otherdisposition of the case is asserted by one party and disputed by theother,—(a) the court must indicate to the parties the weight that it wouldbe likely to attach to the disputed fact if it were found to exist,and its significance to the sentence or other disposition of thecase:(b) if a party wishes the court to rely on that fact, the parties mayadduce evidence as to its existence unless the court is satisfiedthat sufficient evidence was adduced at the trial:(c) the prosecutor must prove beyond a reasonable doubt theexistence of any disputed aggravating fact, and must negatebeyond a reasonable doubt any disputed mitigating fact raisedby the defence (other than a mitigating fact referred to inparagraph (d)) that is not wholly implausible or manifestlyfalse:(d) the offender must prove on the balance of probabilities theexistence of any disputed mitigating fact that is not related tothe nature of the offence or to the offender's part in theoffence:(e) either party may cross-examine any witness called by theother party.[38] This was an issue considered by Mander J in Rodgers v R.54 In that case theCourt was considering an appeal against the imposition of a registration order underthe Act. Mr Rodgers had pleaded guilty immediately before his trial started to a chargeof indecently communicating with a 14 year old girl. He also faced two charges ofsexual connection with the same young person and was found not guilty by a jury onthose two charges. In sentencing Mr Rodgers the District Court Judge did not takeinto account evidence from the trial about the sexual connection charges. However,when it came to assessing Mr Rodger's risk for the purposes of a registration order,the Judge did take the acquittals into account. Mr Rodgers appealed on the groundthat the Judge erred in doing so because that assessment was inconsistent with thejury's verdicts.[39] Counsel for Mr Rodgers submitted, as Mr Lamb has done in this appeal, thats 24 governs the approach of a court in conducting a risk assessment.54 Rodgers v R [2018] NZHC 1800.[40] While Mander J doubted whether s 24 applied to the decision-making processrequired of a judge under s 9 of the Act, he considered it was not necessary for thepurpose of deciding the appeal to come to any concluded view. But the Judge alsostated that he considered the underlying principles behind the prescription of s 24equally applied when considering the correct approach to the use of evidence adducedat trial which may bear on the making of a registration order.55[41] Mander J referred to the approach required of a judge to the factual basis uponwhich sentencing is to proceed after a trial, namely that a judge who has heard theevidence in a jury trial is entitled, where the evidence supports it, to reach their viewof the facts relevant to sentencing provided such a view is not inconsistent with theverdict.56 Mander J accordingly concluded that the District Court Judge had erred innot finding himself bound by the jury's not guilty verdicts in imposing the registrationorder.[42] Mander J then considered that arguably, the making of a registration order isakin to the making of an ESO. He said:57[46] Arguably, the making of a registration order is akin to the making ofan ESO. It is also focussed on similar considerations that are to the fore inassessing the appropriateness of a sentence of preventive detention, namelythe assessment of risk. The Court's continued jurisdiction over the offenderarises from the person's conviction of a criminal offence. However, it is notsuggested that for the purposes of making an ESO, nor when assessing the riskof reoffending and the safety of the public, a Court could take into accountalleged offending of which the offender has been acquitted. Even if the Judgewho heard the trial considered themselves well placed to assess the likelihoodof the offender having committed the acts that constitute the offence, it wouldnot be legitimate for a Court to exercise its jurisdiction over a person on thebasis that he had committed those offences.[43] The Judge then turned to allegations which had not been the subject of chargesat the trial, noting that they may be available to be taken into account in determiningrisk. The Judge said:[49] However, a difficulty arises regarding the status of other eventsmentioned in Judge Gilbert's sentencing decision concerning occasions, other55 At [27].56 At [29] citing R v Heti [1992] CRNZ 554 (CA) at 554.57 At [46].than those the subject of charges, when Mr Rodgers allegedly kissed the 14-year-old and had some form of physical contact with her.[50] These incidents were not the subject of charges and the jury was notrequired to return verdicts or make findings in respect of that conduct. BecauseI have no knowledge of the trial evidence or the respective cases of the Crownand the defence as presented at trial, I am unsure whether factual findings asto whether such conduct took place would be inconsistent with the jury'sverdict. That evidence, at least potentially, may be available to be taken intoaccount, together with the other circumstances relating to the charge ofexposing the young person to indecent material, when assessing the issue ofrisk.[44] Returning to Mander J's conclusion that acquittal evidence could not be usedin assessing risk for the purposes of both an ESO or a sentence of preventive detention,it appears that s 107F(3) of the Parole Act and s 88(3) of the Sentencing Act may nothave been brought to the Court's attention.[45] An alternative view to that reached by Mander J (namely that prior acquittalsmay be taken into account) has support in the subsequent comments of the Court ofAppeal on the use of acquittal evidence in Halalupe v R.58 Mr Halalupe, who hadfaced trial on five charges of indecent assault, appealed the admission as propensityevidence of a prior acquittal on a charge of indecent assault. His appeal was dismissedand the Court of Appeal set out the principle relevant to the use of acquittal evidenceas follows:[15] Acquittal propensity evidence can produce a reflexive reaction againstadmission. It is sometimes seen as offending the double jeopardy rule. Or it issaid to be unfair that the same acts which resulted in an acquittal, or "findingof innocence", can be raked up again in a later trial. These responses mistakeboth the function and status of acquittal propensity evidence.[16] A prior verdict of acquittal is not a declaration of the defendant'sinnocence. The jury verdict is a unanimous (or majority) determination thatthe charge has not been proved to the requisite standards. It is an evaluationof the prosecution, rather than of the character of the defendant. As this Courtobserved in R v Degnan:We find it difficult to endorse the approach taken in some of theCanadian cases that a verdict of not guilty is the equivalent of adeclaration of innocence. That approach risks elevating perceivedtheory over the realities of criminal practice. In the vast majority ofcases a jury, when returning a verdict of not guilty, cannot be taken assaying affirmatively they are satisfied the accused is innocent; whatthey are really saying is that they are not satisfied beyond reasonable58 Halalupe v R [2019] NZCA 240.doubt the accused is guilty. While our system of criminal justice doesnot allow a second trial, whatever the force of new evidence that maybe discovered, it would be to tilt the balance too far in favour of theaccused to have an absolute rule of exclusion of the evidencesupporting the first complaint at a subsequent trial of an unrelated butsufficiently similar complaint.[17] Whether the jury believed the defendant innocent cannot be said; theywere not present at the crime and cannot say. The verdict affirms theircollective uncertainty as to guilt. As Ms Ewing observed, juries do not givereasons, however hard lawyers may try to interpolate their thinking. The merefact of an acquittal is an insufficient basis on which to assume that acomplainant has been thoroughly discredited.[18] Nor does the receipt of acquittal propensity evidence offend thedouble jeopardy rule. As this Court observed in R v Degnan, issue estoppelhas no place in New Zealand criminal law. The defendant is not on trial inrespect of the prior allegations. As propensity evidence, the prior allegationsare admissible as circumstantial evidence probative of the trial charges. Theprior allegations need not be proven to the criminal standard. But particulardirections will be required to emphasise that the defendant is not being retriedon the charges on which he or she was acquitted, in addition to more generalpropensity directions.(citations omitted)[46] The principles in Rodgers would be at odds with the comments of the Court ofAppeal in Halalupe if Mander J's conclusion on the limited use of acquittal evidencewere extended to all circumstances in which a sentencing court, tasked withdetermining an offender's risk under the Act, also had before it an offender's prioracquittals in unrelated charges.[47] Mr De Lange's acquittals and the unproven allegations made against himinclude alleged conduct similar to that which is the subject of the present charges. Thealleged victims were similarly young. Contrary to the view taken by Mander J, andfor the reasons set out above, I consider the Psychological Assessment Report couldtake them into account as indicative of a risk that Mr De Lange would be more likelyto reoffend than someone who did not have such allegations brought against them. Toconsider the acquittals and unproven allegations would be consistent with other riskassessment procedures and Halalupe v R. The Judge therefore did not err inconsidering Mr De Lange's acquittals and the unproven allegations made against himwhen determining risk under s 9(2) and (3) of the Act.[48] Mr Lamb also submits that the tests and conclusions drawn in thePsychological Assessment Report cannot be relied upon because they are inaccurate.However, he does not advance any evidence in support of this proposition except byway of a reference to Ms Grves comments in relation to the Static-99R. She said "Asthe Common Risk Language classifications are intended to describe relative risk, anyreference to absolute risk probabilities should be interpreted with caution because ofvariability between samples". Absent any evidence, there is no basis to suggest thatthe tests are so inaccurate as to be discounted. This is especially so given thatMs Grves recognised that the tests are not infallible detectors of recidivist offending.The Court can, and did in this case, take that potential for error into account.59 Thisdoes not appear to be a case on the margins where any inaccuracy may bedeterminative. Mr De Lange's scores placed him in a high risk category. FurtherMs Grzes' final assessment was an overall one, based not just on the tests, but on allthe information available to her as well as her clinical judgement. Therefore, the Judgedid not err in considering the tests and conclusions drawn in the PsychologicalAssessment Report.[49] Finally, as to whether the evidence establishes a relevant risk, Mr Lambsubmits that Mr De Lange does not fit the criteria for a "serious child sex offender" orfulfil the requirement of a "real and genuine risk", having regard to Goose v Police,60Johnston v Police,61 and Fowler v R.62[50] Firstly, the concept of "serious child sex offender" was said by the SupremeCourt to be of no assistance to the determination of threshold risk.63 It is not necessaryto consider whether Mr De Lange meets this definition (even though the Judge madereference to it). The test is whether Mr De Lange poses a real or genuine risk to thelives or sexual safety of one or more children, or of children generally.[51] Secondly, Johnston v Police and Fowler v R may be distinguished insofar asthe reports prepared in respect of the defendants in those cases assessed them as being59 New Zealand Police v De Lange, above n 4, at [22], n 1.60 Goose v Police, above n 33.61 Johnston v Police, above n 34.62 Fowler v R, above n 35.63 D v Police, above n 31, at [105].of a low likelihood of reoffending.64 This is a sharp distinction from Mr De Lange'scase, which places him at a high risk of reoffending. The written risk assessment, towhich Courts must have regard, is influential in the assessment of threshold risk.[52] As noted, the respondent recognises that the Judge did not explicitly undertakethe balancing test set out in D v Police.65 The question is whether the imposition of aregistration order is a proportionate response to the risk identified, having regard tothe intrusion on the appellant's rights that this will involve.66[53] Having regard to the s 9(3) factors, it is fair to characterise Mr De Lange as ofreasonably high risk of reoffending, even if that offending is considered to be of lesserseriousness. The offending was of an opportunistic nature. The PsychologicalAssessment Report and PAC reports demonstrate that he is unwilling to acceptresponsibility for his offending or undertake rehabilitative treatment. He continues todeny any liability for the present offending and for the conduct described in theallegations against him (acknowledging that they are unproven). That invites theconclusion that Mr De Lange poses a significant risk.[54] Turning to the intrusion on the appellant's rights, there is no indication orsubmissions made that Mr De Lange would be disproportionately affected byregistration. Mr Lamb's submissions were primarily directed at the consideration ofunproven allegations in assessing the threshold risk stage of the test, rather than thebalancing exercise. While the Judge did not undertake the second step, neverthelessthe Judge did not err in concluding that a registration order should be made.Registration is proportionate to the risk posed by Mr De Lange, having regard to theintrusion on his rights consequent of registration.6764 Johnston v Police, above n 34, at [47]; Fowler v R, above n 35, at [50].65 Although, the appellant did not make any submissions on this point. I also note that the judgmentof the Supreme Court in D v Police, above n 31, had not been delivered at the time of sentencing.66 D v Police, above n 31, at [129].67 Requirements relate to provision of personal information and reporting obligations.Result[55] The appeal is dismissed.___________________________________Gordon J